Citation Nr: 0733953
Decision Date: 10/29/07 Archive Date: 11/07/07
DOCKET NO. 05-01 556 ) DATE
)
)
On appeal from the
U.S. Department of Veterans Affairs (VA) Regional Office (RO)
in Chicago, Illinois
THE ISSUE
Entitlement to an increased rating for diabetes mellitus
(DM), currently evaluated as 20% disabling.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Thomas A. Pluta, Counsel
INTRODUCTION
The veteran had active service from July 1966 to July 1968.
This appeal to the Board of Veterans Appeals (Board) arises
from a January 2004 rating action that denied a rating in
excess of 20% for DM.
FINDINGS OF FACT
1. All notification and development action needed to fairly
adjudicate the claim on appeal has been accomplished.
2. The veteran's DM requires him to take insulin and to
follow a restricted diet, but does not require him to
regulate his activities.
CONCLUSION OF LAW
The criteria for a rating in excess of 20% for DM have not
been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West
2002); 38 C.F.R. §§ 3.102, 3.159, and Part 4, including
§§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.119, Diagnostic Code 7913
(2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duties to Notify and Assist
In November 2000, the Veterans Claims Assistance Act of 2000
(VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102,
5103, 5103A, 5107 (West 2002). To implement the provisions
of the law, the VA promulgated regulations codified at
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). The
VCAA and its implementing regulations include, upon the
submission of a substantially complete application for
benefits, an enhanced duty on the part of the VA to notify a
claimant of the information and evidence needed to
substantiate a claim, as well as the duty to notify him what
evidence will be obtained by whom. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b). In addition, they define the
obligation of the VA with respect to its duty to assist a
claimant in obtaining evidence. 38 U.S.C.A. § 5103A;
38 C.F.R. § 3.159(c).
Considering the record in light of the duties imposed by the
VCAA and its implementing regulations, the Board finds that
all notification and development action needed to fairly
adjudicate the claim on appeal has been accomplished.
An April 2002 pre-rating RO letter informed the veteran and
his representative of the VA's responsibilities to notify and
assist him in his claim, and to advise the RO as to whether
there was medical evidence showing treatment for the
disability at issue. That letter also notified the veteran
that, to obtain a higher rating, the evidence had to show
that his service-connected disability had worsened.
Thereafter, they were afforded opportunities to respond. The
Board finds that the veteran has thus received sufficient
notice of the information and evidence needed to support his
claim, and has been provided ample opportunity to submit such
information and evidence.
The 2002 RO letter also notified the veteran that the VA
would make reasonable efforts to help him get evidence
necessary to support his claim, such as medical records
(including private medical records), if he gave it enough
information, and, if needed, authorization, to obtain them,
and further specified what records the VA was responsible for
obtaining, to include Federal records, and the type of
records that the VA would make reasonable efforts to get.
The RO letter further requested the veteran to furnish any
medical records that he had. The Board thus finds that the
2002 RO letter satisfies the statutory and regulatory
requirement that the VA notify a claimant what evidence, if
any, will be obtained by him and what evidence will be
retrieved by the VA. See Quartuccio v. Principi, 16 Vet.
App. 183, 187 (2002).
In the decision of Pelegrini v. Principi, 18 Vet. App. 112
(2004), the U.S. Court of Appeals for Veterans Claims (Court)
held that proper VCAA notice should notify a veteran of: (1)
the evidence that is needed to substantiate a claim; (2) the
evidence, if any, to be obtained by the VA; (3) the evidence,
if any, to be provided by a claimant; and (4) a request by
the VA that the claimant provide any evidence in his
possession that pertains to the claim. As indicated above,
all 4 content of notice requirements have been met with in
this appeal.
Pelegrini also held that the plain language of 38 U.S.C.A.
§ 5103(a) requires that notice to a claimant pursuant to the
VCAA be provided at the time that, or immediately after, the
VA Secretary receives a complete or substantially complete
application for VA-administered benefits. In that case, the
Court determined that the VA had failed to demonstrate that a
lack of such pre-adjudication notice was not prejudicial to
the claimant. In the matter now before the Board, the April
2002 document meeting the VCAA's notice requirements were
furnished to the veteran prior to the January 2004 rating
action on appeal.
More recently, in March 2006, during the pendency of this
appeal, the Court issued a decision in the consolidated
appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473
(2006), which held that, in rating cases, a claimant must be
informed of the rating formula for all possible schedular
ratings for an applicable rating code. In this case, the
Board finds that this was accomplished in the November 2004
Statement of the Case, and that this suffices for
Dingess/Hartman. The Court also held that the VA must
provide information regarding the effective date that may be
assigned, and such notice was provided in a July 2007 RO
letter.
Additionally, the Board finds that all necessary development
on the claim currently under consideration has been
accomplished. The RO, on its own initiative, has made
reasonable and appropriate efforts to assist the appellant in
obtaining all evidence necessary to substantiate his claim,
to include obtaining available post-service VA and private
medical records through 2004. In September 2001 and May
2002, the veteran was afforded comprehensive VA examinations,
reports of which are of record. The record also presents no
basis for further development to create any additional
evidence to be considered in connection with the matter
currently under consideration. Although in his January 2005
Substantive Appeal the veteran requested a Board hearing at
the RO, a July 2007 VA Contact Report indicated that he
telephoned the RO and withdrew that hearing request.
Under these circumstances, the Board finds that the veteran
is not prejudiced by appellate consideration of the claim on
appeal at this juncture, without directing or accomplishing
any additional notification and/or development action.
II. Analysis
Disability evaluations are determined by comparing a
veteran's present symptomatology with the criteria set forth
in the VA's Schedule for Rating Disabilities, which is based
on average impairment of earning capacity. 38 U.S.C.A.
§ 1155; 38 C.F.R. Part 4. When a question arises as to which
of 2 ratings applies under a particular diagnostic
code (DC), the higher rating is assigned if the disability
more closely approximates the criteria for the higher rating;
otherwise, the lower rating applies. 38 C.F.R. § 4.7. After
careful consideration of the evidence, any reasonable doubt
remaining is resolved in favor of the veteran. 38 C.F.R.
§ 4.3.
A veteran's entire history is to be considered when making a
disability determination. See generally 38 C.F.R. § 4.1;
Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where
entitlement to compensation has already been established and
an increase in the disability is at issue, it is the present
level of disability that is of primary concern. See
Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
The veteran's DM has been rated 20% disabling under the
provisions of 38 C.F.R. § 4.119, DC 7913. Under the
applicable criteria, a 20% rating is warranted for DM
requiring insulin and a restricted diet, or an oral
hypoglycemic agent and a restricted diet. A 40% rating
requires insulin, a restricted diet, and regulation of
activities. A 60% rating requires insulin, a restricted
diet, and regulation of activities with episodes of
ketoacidosis or hypoglycemic reactions requiring 1 or 2
hospitalizations per year or twice a month visits to a
diabetic care provider, plus complications that would not be
compensable if separately evaluated. A 100% rating requires
more than 1 daily injection of insulin, a restricted diet,
and regulation of activities (avoidance of strenuous
occupational and recreational activities) with episodes of
ketoacidosis or hypoglycemic agents requiring at least 3
hospitalizations per year or weekly visits to a diabetic care
provider, plus either progressive loss of weight and strength
or complications that would be compensable if separately
evaluated.
The Court has recently held that medical evidence is required
to show that occupational and recreational activities have
been restricted. Camacho v. Nicholson, No. 05-1394 (U.S.
Vet. App. July 6, 2007).
After reviewing the entire evidence of record and considering
such evidence in light of the regulatory criteria noted
above, the Board finds that a rating in excess of 20% is not
warranted for DM, as it has not been shown to be so disabling
as to warrant a 40% or higher rating under DC 7913. Although
the veteran's DM requires him to take insulin for control and
to follow a restricted diet, the evidence indicates that he
is able to carry out his usual activities without difficulty,
and that the DM does not require him to regulate his
activities.
On September 2001 VA examination, no episodes of ketoacidosis
or hospitalizations for DM were noted; the veteran did have
hypoglycemic reactions about 2 to 4 times per month. He was
on a restricted diet, and had been trying to lose weight, but
denied any restrictions of activities. After examination,
the diagnosis was DM with fair control, with some neuropathy
but no nephropathy or retinopathy.
On February 2002 VA outpatient evaluation, the veteran stated
that he was active, although he exercised less during the
winter due to poor weather conditions. After examination,
the impression was type 2 DM not well controlled on
combination therapy, and it was planned to start the veteran
on insulin.
On May 2002 VA examination, the veteran was noted to have
been started on insulin in February, and he also took other
medications. He denied hospitalizations for DM, and had
gained 8 pounds since February. The veteran drove a car and
performed work chores around his house, but stated that he
could not work for more than approximately 4 hours because
his blood sugar dropped drastically. After examination, the
diagnosis was type 2 DM, now requiring the addition of
insulin therapy since February, with indications of diabetic
neuropathy of the feet and no restriction in activity over 4
hours per the veteran's history, although he felt unable to
be left alone for fear of hypoglycemia.
July 2002 VA outpatient evaluation indicated that the
veteran's insulin dosage was adjusted. In August, J. K.,
M.D., noted that the veteran was doing pretty well
clinically. In October, Dr. J. K. noted that the veteran's
DM was in poor control, and his medications were adjusted in
October and November 2002. He was noted to have had a few
hypoglycemic spells.
In early January 2003, the veteran was noted to have had a
couple of hypoglycemic episodes in the evenings; Dr. J. K.
noted that he had only recently resumed a diabetic diet that
he was supposed to have been following. On late January VA
outpatient evaluation, the veteran's recurrent evening
hypoglycemia was noted to have resolved. The impression was
type 2 DM on intensive management to prevent hypoglycemia,
with laboratory findings not within acceptable range. The
veteran was encouraged to exercise and lose weight. In
February, Dr. J. K. noted that the veteran felt better now
than he had for some time since insulin was being used to
manage his DM. In April, the doctor stated that the DM was
still not as well controlled as he would like. On early May
VA outpatient evaluation, the veteran was noted to have
gained approximately 25 pounds over the past 1.5 years. He
stated that his blood sugars were much better now that his
medication dosage had been increased. He realized that part
of his problem was associated with compliance with a diabetic
diet. The veteran was advised that weight gain was
detrimental.
In mid-May 2003, the veteran was hospitalized at the Chester
Memorial Hospital because of increasing weakness and
uncontrolled DM. He admitted that he had not been drinking
fluids well. During his hospital course, generalized
weakness and orthostatic status improved with fluid
replacement. The veteran's blood sugars were noted to have
been elevated on admission, partially due to his inconsistent
use of insulin and dietary management. Once he was able to
start taking a regular diet, medications brought his blood
sugars under adequate control. The diagnoses included
uncontrolled type II DM, and weakness secondary to
dehydration and orthostatic hypotension. When hospitalized
again a week later for gallbladder colic, the veteran's blood
sugars were noted to have been reasonably well controlled.
He subsequently underwent laparoscopic cholecystectomy.
In June 2003, Dr. J. K. stated that the veteran's blood
sugars were still not where he would like them, but noted
that the veteran did not follow his diet as closely as he
should, and that his DM would do better with dietary
management. On July VA outpatient evaluation, the veteran
reported feeling quite good. He weighed 216 pounds, which
was up from 206 in February 2003 and 189 in February 2002.
The assessments included improved DM, but not quite in good
control.
On April 2004 VA outpatient evaluation, the veteran's DM was
noted to be in fair control and improved from 3 months ago.
In September, he weighed 226 pounds, and stated that he was
noncompliant with a diabetic diet. A diabetic foot
examination was normal.
After a review of the evidence, the Board finds that,
although the veteran's DM requires him to take anti-diabetic
medications including insulin and to follow a restricted
diet, it does not require him to regulate his activities,
which is necessary for entitlement to a 40% rating under DC
7913. The medical evidence does not indicate that the
veteran must avoid strenuous occupational and recreational
activities as a result of his DM. The Board also notes that,
contrary to medical advice, the veteran has been gaining
weight and variously noncompliant with a prescribed diabetic
diet, which has been partially responsible for exacerbations
of his DM symptoms from time to time.
For all the foregoing reasons, the Board finds that the claim
for a rating in excess of 20% for DM must be denied. In
reaching this conclusion, the Board has considered the
applicability of the benefit-of-the-doubt doctrine; however,
as the preponderance of the evidence is against the claim,
that doctrine is not applicable in the instant appeal. See
38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49,
55-57 (1990).
ORDER
A rating in excess of 20% for diabetes mellitus is denied.
____________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs